Reservation of review
With the reservation of the review , the tax assessment is kept open in tax law in Germany . This means that the determination can be changed ex officio or upon request at any time and without justification .
meaning
The reservation of the review serves a simplified and accelerated procedure for the purpose of an initial tax assessment , which should take place without laborious review of the information provided by the taxpayer and thus enable the incoming tax returns to be processed quickly . Thus, the reservation of the review makes the quick reimbursement or first due date of additional payments possible based solely on the information provided by the taxpayer. Only in the second step - because the change is possible at any time - the subsequent comprehensive review, for example by means of an external tax audit , can be carried out. It should be noted that the tax authorities are entitled, but not obliged, to re-examine the case (conclusively).
Scope and types of reservation
The reservation of the review according to § 164 AO is either ordered as an ancillary provision within the meaning of § 120 AO in the tax assessment by the tax authority (official reservation) or is provided by law for tax registrations , notifications of advance payments and entries on the income tax card (legal reservation).
The reservation of the re-examination is permissible according to § 164 Abs. 1 S. 1 AO in tax assessments. However, it is also applied to notices of equal status (e.g. notices of assessment).
requirement
The tax authority can officially order the reservation of the review in general or in individual cases. However, the only prerequisite for ordering an official reservation of the review is that the tax case has not yet been finally examined.
effect
Reservation assessments have the same effects as final tax assessments. The tax that is subject to reservation is the basis for the collection procedure, becomes due and can also be enforced.
The reservation of the review keeps the entire tax case open. As long as the reservation is effective, the tax assessment notice does not have any material validity , since the tax assessment in question can be changed at any time without restrictions, both in favor of and to the disadvantage of the taxpayer . The tax authority is entitled to take up and review the tax case. It is possible to make multiple changes as long as the tax assessment is effective.
However, in the case of a tax assessment issued subject to review, formal validity takes effect, i.e. This means that the tax assessment can no longer be appealed against after the one-month objection period has expired . As a result, an objection to a tax assessment that was issued with reservation in accordance with Section 164 (1) AO and which was filed after the objection period had expired would have to be rejected as time-limited and therefore inadmissible.
The reservation of the re-examination is - as far as it was ordered by the authorities - a discretionary decision i. S. v. § 5 AO. Discretionary decisions are to be adequately justified in order to be able to check the (correct) exercise of discretion. However, since the reservation is intended to accelerate the assessment process, the legislature has expressly authorized the tax authorities to determine the taxes with reservation without explaining the purpose of the reservation.
Change and cancellation
According to Section 164 (2) AO, the change in the tax assessment in question from a substantive point of view is possible at any time without restrictions. The change is only excluded if the reservation no longer applies. A change is possible ex officio or at the request of the taxpayer. The tax authorities may postpone the decision on a change request until the final examination. The decision only has to be made within a reasonable period of time.
The reservation can be lifted in two ways: On the one hand, the reservation can be expressly withdrawn. This withdrawal is equivalent to a final tax assessment, which can be contested with the legal remedy (objection). The statutory formal requirements for tax assessments apply to the lifting of the reservation. Consequently, the reservation must be lifted in writing and provided with information on legal remedies (so-called isolated cancellation). The tax authority can cancel the reservation of the review according to § 164 Abs. 3 Satz 2 AO (at any time).
Only after an external audit (full audit) is there an obligation for the tax authorities to lift the reservation. If there is no change after the external audit, the reservation of the review is to be lifted by virtue of an express statutory order ( Section 164 (3) sentence 3 AO). Conversely, from Section 164 (3) sentence 1 AO, the reservation must also be lifted after an external audit with an additional result, as the tax case has been finally examined.
The reservation also automatically lapses at the end of the assessment period if it has not been expressly lifted by the tax authorities. Extended assessment periods (e.g. ten years in the case of tax evasion) do not apply to the reservation in accordance with Section 164 (4) sentence 2 AO.
Difference to the provisional
The tax assessment with reservation keeps the entire tax case open and differs from the final tax assessment and from the provisional tax assessment (the latter by means of a provisional note), which only keeps individual controversial points open in the assessment procedure. If the provisional measure covers cases of temporary factual or legal uncertainty, in particular because it is uncertain whether the prerequisites for the occurrence of the tax liability have occurred, the reservation of the review applies to cases in which clarification is possible, but for procedural or procedural economic reasons Timing are undesirable. By virtue of the express legal authorization in Section 165 (3) AO, a tax assessment can be made both provisionally and subject to review, as both provisions have different legal requirements and pursue different goals. Both regulations are independent of the other. While the reservation of the review is subject to the general statute of limitations in accordance with Section 164 (4) AO and the decision can no longer be changed subsequently, a provisional tax assessment only expires under certain conditions.
Individual evidence
- ↑ BT-Drucksache VI / 1983, 148.
